The Dennis Case

The Dennis Case

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After the Second World War it was decided to use the Alien Registration Act against the Communist Party of the United States (CPUS). On the morning of 20th July, 1948, Eugene Dennis, the general secretary of the American Communist Party, and eleven other party leaders, included William Z. Foster, Benjamin Davis, John Gates, Robert G. Thompson, Gus Hall, Benjamin Davis, Henry M. Winston, and Gil Green were arrested and charged under the Alien Registration Act. This law, passed by Congress in 1940, made it illegal for anyone in the United States "to advocate, abet, or teach the desirability of overthrowing the government".

The trial began on 17th January, 1949. As John Gates pointed out: "There were eleven defendants, the twelfth, Foster, having been severed from the case because of his serious, chronic heart ailment." The men were defended by George W. Crockett. The chief prosecutor was Irving Saypol, who had been described by Time Magazine as "the nations's number one legal hunter of top communist.".

It was difficult for the prosecution to prove that the eleven men had broken the Alien Registration Act, as none of the defendants had ever openly called for violence or had been involved in accumulating weapons for a proposed revolution. The prosecution therefore relied on passages from the work of Karl Marx and other revolution figures from the past. When John Gates refused to answer a question implicating other people, he was sentenced by Judge Harold Medina to 30 days in jail. When Henry M. Winston and Gus Hall protested, they were also sent to prison.

The prosecution also used the testimony of former members of the American Communist Party to help show that Dennis and his fellow comrades had privately advocated the overthrow of the government. The most important witness against the leaders of the party was Louis Budenz, the former managing editor of the party's newspaper, The Daily Worker.

Another strategy of the prosecution was to ask the defendants questions about other party members. Unwilling to provide information on fellow comrades, they were put in prison and charged with contempt of court. The trial dragged on for eleven months and eventually, the judge, Harold Medina, who made no attempt to disguise his own feelings about the defendants, sent the party's lawyers to prison for contempt of court.

After a nine month trial the leaders of the American Communist Party were found guilty of violating the Alien Registration Act and sentenced to five years in prison and a $10,000 fine. Robert G. Thompson, because of his war record, received only three years. They appealed to the Supreme Court but on 4th June, 1951, the judges ruled, 6-2, that the conviction was legal. It was later discovered that Louis Budenz was paid $70,000 for his information during the trial.

Justice Felix Frankfurter argued: The particular circumstances of this case compel me to conclude that the trial judge should not have combined in himself the functions of accuser and judge. For his accusations were not impersonal. They concerned matters in which he personally was deeply engaged... No judge should sit in a case in which he is personally involved... At frequent intervals in the course of the trial his comments plainly reveal personal feelings against the lawyers.... Truth compels the observation, painful as it is to make it, that the fifteen volumes of oral testimony in the principal trial record numerous episodes involving the judge and defense counsel that are more suggestive of an undisciplined debating society than of the hush and solemnity of a court of justice. Too often counsel were encouraged to vie with the court in dialectic, in repartee and banter, in talk so copious as inevitably to arrest the momentum of the trial and to weaken the restraints of respect that a judge should engender in lawyers... Throughout the proceedings... he failed to exercise the moral authority of a court possessed of a great tradition.

Justice William Douglas agreed: "I agree with Mr. Justice Frankfurter that one who reads the record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench fo whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly discussion and of ill will and hot tempers."

This decision was followed by the arrests of 46 more communists during the summer of 1951. This included Elizabeth Gurley Flynn, who was also convicted for contempt of court after telling the judge that she would not identify people as Communists as she was unwilling "do degrade or debase myself by becoming an informer". She was also found guilty of violating the Alien Registration Act and sentenced to two years in prison.

In his autobiography, Being Red, the author, Howard Fast commented: "That the jury made a mockery of the months of evidence and came to its verdict of guilty almost instantly tells more about the nature of this trial than a hundred pages of legal evidence. What fell to us - and by us, I mean those of us in the arts - was the question of what we could do in the new conditions of anti-Communist propaganda created by the trial. It was not only the twelve defendants in Foley Square who were under attack; in every trade union where the Communist Party had any influence, Communists and suspected Communists were being attacked and driven from their leadership positions, from the union, and from their jobs. In this, the anti-Communists (many of them in their jobs because of the work and courage of the Communist organizers) in the AFL and the CIO turned and led the hunt against the Communists."

As John Gates pointed out in his book, The Story of an American Communist (1959): "To many in the leadership, this meant that the United States was unquestionably on the threshold of fascism. Had not Hitler's first step been to outlaw the Communist Party? We saw an almost exact parallel."

We eleven defendants will prove that the very time when we allegedly began this menacing conspiracy we were in fact advocating and organizing all-out support to the Government of the United States. We will prove that all of us taught the duty of upholding the United States Government and of intensifying the anti-Axis war effort and we defendants will put in evidence the honorable war record of the 15,000 American Communists who, in accord with what we taught and advocated, served with the armed forces in the military defense of our country.

We will show with what peaceful intent we taught and advocated, amongst other things, to oppose American support to the unjust and criminal war against the Chinese people waged by the miserable Chiang Kai-shek, to oppose the civil war against the Greeks, waged by the monarchist-fascist puppet of the American masters, with the American people footing the bill, to oppose the Anglo-American oil lords against the new State of Israel, and the people of Indonesia, and to oppose the restoration of the German and Japanese monopolies and war potential under the new management of the American cartelists.

You will see that our Communist Party Constitution acknowledges not only that we learn from Marx and Lenin but that we owe much to and learn from the teachings of men like Thomas Jefferson, Abraham Lincoln, Frederick Douglass, William Sylvis, and Eugene V. Debs.

The prosecution asks this jury for what amounts to a preventative conviction, in order that we Communist leaders may be put under what the Nazis called protective custody. I ask the jury to weigh the prosecution's case against the proof we defendants will offer to establish that we have taught and advocated the duty and necessity to prevent the force and violence of Fascism, imperialists of war and Iynching and anti-Semitism. I ask you to weigh carefully our sincere offer of proof which demonstrates that we Communists are second to none in our devotion to our people and to our country, and that we teach and advocate and practice a program of peace, of democracy, equality, economic security, and social progress.

The Communist Party bases itself upon so-called scientific socialism, the theory and practice of so-called scientific socialism as appears in the writings of Marx, Engels, Lenin, and Stalin, therefore as interpreted by Lenin and Stalin who have specifically interpreted scientific socialism to mean that socialism can only be attained by the violent shattering of the capitalist state, and the setting up of a dictatorship of the proletariat by force and violence in place of that state. In the United States this would mean that the Communist Party of the United States is basically committed to the overthrow of the Government of the United States as set up by the Constitution of the United States.

Judge Medina not only bore a marked resemblance to actor Adolphe Menjou; like Menjou, he was a consummate actor. From the outset he assumed the star role in the proceedings. Evidently believing that the prosecution could not produce any evidence to back up the charge on which we were indicted, he proceeded to prosecute us on a charge which he dreamed up himself: we and our lawyers were supposed to be conspiring to obstruct justice by dragging out the trial-a charge which the U.S. Supreme Court rejected.

Although our case was a hopeless one under the circumstances, the defendants made every mistake in the book. We permitted the trial to become a duel between judge and defense; it is difficult enough to get a federal jury to vote against the government prosecutor, it will never vote against the judge. Medina baited and provoked our lawyers and they fell into the trap. With the press solidly behind the judge and against us, no matter what we did was reported in a bad light, and our defense tactics often made a bad situation worse.

If the contents of the book and these other pamphlets and documents of one kind or another, that were handed around, and people were told to study them and to teach other people what to do, and how they were to go around and do the things that have been testified to here. I can scarcely believe that it is trying a book. it is trying those persons who used the book and other means to allegedly commit a crime, and that is part of the paraphernalia of the crime.

At the outset I want to emphasize what the crime involved in this case is, and what it is not. These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date. The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids.

But let us assume, contrary to all constitutional ideas of fair criminal procedure, that petitioners although not indicted for the crime of actual advocacy, may be punished for it. Even on this radical assumption, the other opinions in this case show that the only way to affirm these convictions is to repudiate directly or indirectly the established "clear and present danger" rule. This the Court does in a way which greatly restricts the protections afforded by the First Amendment. The opinions for affirmance indicate that the chief reason for jettisoning the rule is the expressed fear that advocacy of Communist doctrine endangers the safety of the Republic. Undoubtedly, a governmental policy of unfettered communication of ideas does entail dangers. To the Founders of this Nation, however, the benefits derived from free expression were worth the risk. I have always believed that the First Amendment is the keystone of our Government, that the freedoms it guarantees provide the best insurance against destruction of all freedom.

So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those "safe" or orthodox views which rarely need its protection.

Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions, and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.

Let's examine some of the implications of the verdict. The men were indicted under the Smith Act, which was passed in 1940. It went through the Senate without a roll call, and only four votes were registered against it in the House. The verdict in judge Medina's court will be tested before the Supreme Court, and that body will have to try to determine the constitutional limitations that may be placed upon advocacy of change through violence.

There are some things that can be concluded from the verdict: If you conspire, as these men were convicted of conspiring, then you face a prison sentence and possible fine. The verdict means that there will be a determined campaign by the Communists to try to sell to the country the issues that were lost in the trial. It means that the eleven Communist leaders aren't going to be available to direct the affairs of the party for some time. The question arises as to whether the men who replace them will also be guilty of breaking the law. They could not automatically be judged guilty by virtue of their membership or official position in the Communist Party. The government would have to produce evidence, witnesses, documents and bring them before a jury as they did in this case. The verdict undoubtedly means Russian propaganda efforts to discredit our system of justice. But the verdict proves that under that system of justice, the accused can get a nine months' trial, plus a jury to hear the case - even if they are, as Prosecutor McGohey stated, "professional revolutionists."

But there are some things that this verdict does not mean. It does not mean that membership in the Communist Party as such is illegal. The party is not outlawed. The verdict does not mean that you must read any specific books, talk as you will or peacefully assemble for any purpose other than to conspire to overthrow the government by force and violence. It does not mean that you are subject to legal action for saying things favourable to the Communist Party. Nothing in this verdict limits the citizen's right, by peaceful and lawful means, to advocate changes in the Constitution, to utter and publish praise of Russia, criticism of any of our political personalities or parties. You may, in short, engage in any action or agitation except that aimed at teaching or advocating the overthrow of the government by violence.

If this verdict is upheld by the Supreme Court, similar prosecutions may follow. But in each individual case it will be necessary for the government to prove, not only that the defendants were members of the Communist Party, but that they conspired to overthrow the government, and did so knowingly and wilfully.

One result of the verdict may be to convince a number of people that the Communists are not just another political party. In view of the mass of evidence produced in judge Medina's court, it will be pretty difficult in the future for anyone to maintain that he joined and worked for the Communist Party without really knowing that it advocated violent revolution. There have been many serious proposals to control, contain or outlaw the Communist Party in this country, efforts to hog-tie them without strangling our liberties with the loose end of the rope. It is both delicate and dangerous business. We can't legislate loyalty. But nevertheless the question of the control of subversion is one of the most important confronting this country.

That the jury made a mockery of the months of evidence and came to its verdict of guilty almost instantly tells more about the nature of this trial than a hundred pages of legal evidence. In this, the anti-Communists (many of them in their jobs because of the work and courage of the Communist organizers) in the AFL and the CIO turned and led the hunt against the Communists.

Where did that leave us? I had an idea that I put to some of the leaders, but they brushed it aside. The party had no time or money for what they certainly regarded as the high jinks of the intellectuals, a group never too highly regarded by any Communist leaders at that time. My idea was to organize a great meeting of the arts in the cause of peace. My feeling was that the struggle for peace was paramount. If the march to war could be halted, other matters could be solved more easily. I laid out the details of what could be done to Lionel Berman of the Cultural Section, and he agreed with me that it was worth a try. The leadership of the party turned us down flat. They felt that every resource had to be directed toward fighting the repression and winning the trial. They had little faith in what we might do, and they had no money to spare for us.

The particular circumstances of this case compel me to conclude that the trial judge should not have combined in himself the functions of accuser and judge. he failed to exercise the moral authority of a court possessed of a great tradition.

I agree with Mr. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly discussion and of ill will and hot tempers.

Judged By History : What makes a great judge--his reasoning or his vision? : LEARNED HAND: The Man and the Judge, <i> By Gerald Gunther (Alfred A. Knopf: $35 818 pp.)</i>

Judge Learned Hand’s portrait has fixed itself in our memory: the lined face, the striking eyes. He leans forward, his hand thrust into the pages of an immense volume of law, and he looks up from under his bristling brows, patiently listening, disbelieving. The famous photograph was taken in 1952 the following year, Gerald Gunther became his law clerk and began to plan this biography, which he has been working at with varying degrees of intensity for 40 years.

Of that epochal year of service with Judge Hand he gives an intimate and moving account. It was the bitter McCarthy time, and Judge Hand was laboring at a solitary dissent on behalf of a man convicted of disloyalty. The grounds for the dissent were tenuous, and the judge went through 13 drafts in agony to find forceful expression for his sympathy. He asked his young clerk to listen to each draft, paragraph by paragraph, as he wrote. Gunther was “startled to find this experienced jurist, a near mythic figure, a household word to every law graduate, the master judge of his generation, asking for help and insisting on candid criticism. . . .” Hand held him close in this Socratic fashion, and for Gunther “everything that followed was anticlimactic.”

Forty years later we have this remarkable book, unlike any biography I know. It is a law professor’s lecture expanded to the size of a Victorian life-and-letters, a huge construction of shadowy rooms and long corridors illuminated by occasional flashes of lightening. Its graceful and modest subject is sometimes in danger of being lost.

One is startled by the reminder that the well-remembered Hand was born in 1872. He grew up in surroundings that might have been expected to produce a more complacent and less reflective character: His comfortably well-off family lived in Albany, a little way from the widow of the elder William James. Albany was then still a half-rural, half-Dutch provincial capital. Hand followed the conventional path of college, law school and a respectable Albany firm. But he was something of an outsider, an intellectual suspected of being a “sissy.” He was restless and dissatisfied, without clear ambitions.

His marriage to Frances Fincke changed his life. For them both, marriage seems to have meant escape from their insular circumstances. They went to New York City together, and there they lived affectionate but largely separate lives.

Hand’s principal interests and pleasures lay within the then entirely male world of the courts, where he served a very long apprenticeship. After five unhappy years in private practice, he succeeded in being appointed a federal trial court judge in Manhattan in 1909. Hand seems not to have cared for the bulk of the work, which consisted of bankruptcy and admiralty law. The disputes over damage done by collisions between barges in New York Harbor, and squabbles among creditors over the assets of a bankrupt, were heard in shabby, poorly lighted rooms. Hand served for 13 years in these uncongenial surroundings, and he formed a permanently unfavorable view of trial court judges and all their works.

He remained so long in these lower depths largely because of his passionate attachment to Theodore Roosevelt’s cause. It was Roosevelt who wooed him from the staid, conservative Democratic Party of Albany, and who with conscious charm in later years seemed to keep him in thrall. Hand campaigned for Progressive candidates, and while a sitting federal judge allowed himself to be named as a Progressive candidate for election to a state judgeship. This closed the door of promotion for many years, until Chief Justice William Howard Taft reached down and lifted him to the federal court of appeals in New York in 1924. There, at 52 years of age, he began his true career.

Hand’s attachment to Roosevelt was characteristic. He had fierce loyalties, and a weakness for men of action. Justice Oliver Wendell Holmes, the dashing veteran of the Civil War, was his idol. He had a talent for friendships, and his close and troubled relation with Felix Frankfurter ran through his later years. Gunther portrays the complex character of Frankfurter, and the highly charged friendship between the two men, with great tact and clarity.

On the court of appeals, Hand was free to devote himself principally to what interested him most, the writing of opinions. It was a highly collegial court, and most cases were decided by a panel of three judges. Judges, like other people, most often decide a question first and then try to express their reasons afterward. Hand was not a talented decision-maker but he was a brilliant analyst. The portion of the work in which he excelled was the preparation of detailed and carefully reasoned memoranda for the other judges, analyzing each case, which then would often become the basis of the joint opinion, explaining their decision.

Gunther does not mention and perhaps fails to see that Hand refused to hire women long after the law schools had let down their bars. Supreme Court Justice Ruth Bader Ginsburg recently recalled that when she graduated from law school with distinguished honors, Hand said he could not hire her because his language was too “salty” for a woman. There is a certain justice, I suppose, in having her appointed to the seat on the Supreme Court for which he yearned.

Hand evidently enjoyed his work. He was an intellectual, as one sees. One of the disappointments of his life was that he had no great originality of mind he went into the law after being disappointed in his hopes of pursuing philosophy, George Santayana having discouraged his youthful efforts. He formed a thoughtful view of his work, however, in which he combined elements of William James’ pragmatism and Holmes’ jurisprudence into a very modern, personal doctrine of utter tolerance. His ironic, self-doubting tone was the voice of the intellectual of the post-war era.

He became very well known as a voice of moderation during President Truman’s and Senator Joseph McCarthy’s purges of the disloyal. It is true that he affirmed, in the United States v. Dennis case, the criminal convictions of officers of the American Communist Party, for advocating the overthrow of the United States government. His thoughtful opinion in that case argued that freedom of speech does not protect those who advocate violence. The Supreme Court upheld him, but the academic world has always had a great deal of difficulty in coming to terms with Dennis, and Hand himself continued to agonize over loyalty cases. Within the limits of his position as a judge he spoke publicly, which took some courage, against the illegal McCarthyite excesses of the time.

He cherished a lifelong ambition to sit on the Supreme Court: “I longed as the thing beyond all else that I craved to get a place on it,” he said when the chance to do so finally passed out of his reach. Justice Felix Frankfurter, his mentor for 30 years, had undertaken a desperate effort in 1942 to have him appointed. Frankfurter was losing ground on the Court and he wanted Hand, his friend and ally, to join him before Roosevelt passed from the scene. But there was no chance of this--Hand was already past 70, and Frankfurter himself was occupying the only seat to which there was a chance of Hand’s being appointed. When Frankfurter’s effort failed, Hand was freed of his yearning. His old age was marked by a new freedom and grace in his work, and an affectionate reunion with Frances.

His name had become well known, but his work was always highly specialized, and even among lawyers was known principally to experts alone. This poses a dilemma for Gunther, who has written his biography for a general audience. Some of Hand’s opinions on intellectual property law are classics, but their elegant quality is difficult to convey outside the context of the law. How to present the appellate court opinions that were Hand’s principal accomplishment? Gunther characteristically attacks the problem frontally he gives in non-technical language detailed descriptions of dozens of Hand’s memoranda and opinions. This method is not entirely satisfactory. The tone here is relentless praise, evidently because Gunther can’t really show us how good Hand was, and so constantly has to tell us. The whole question of what qualities make for success in a judge needs more thoughtful consideration.

There is yet a third book in this vast volume, in some ways the most interesting of the three. It is Gunther’s extended and dramatic presentation of constitutional law and history from a position he attributed to Hand.

Gunther makes the fact that Hand never served on the Supreme Court the theme of his life. The biographer yearns to have had the great cases decided by Hand himself, for he thinks Hand would have done a better job than his idol, Holmes. And that may be in many ways Hand’s pragmatist thinking was more modern than Holmes’. But it is an odd theme for a biography.

The point seems to be to make Hand the spokesman for one side in a continuing debate. On the one hand are those who say that the Bill of Rights sets the only limits on the power of our national and state governments and on the other, those who say the Civil War produced new and broader guarantees of equality and due process of law, which we found in the 14th Amendment to the Constitution.

Gunther makes the case for relying on the narrowly written provisions of the Bill of Rights. He likes to call his position “judicial restraint,” although that begs the question. If the Civil War changed the nature of American government, and the 14th Amendment embodied that change, Gunther’s heroes are not models of restraint, but judicial activists rewriting the Constitution. Gunther makes Hand the exemplar of this “judicial restraint.”

Although Professor Gunther insistently calls Hand a liberal, using this as a term of praise, his views were closest to those now expressed by Justice Antonin Scalia. The battle lines have not shifted, but the armies have a way of exchanging uniforms.

Perhaps there is too much of Gunther and not enough of Hand in this portion of the book. He lectures, entertainingly but dogmatically. He is entitled to his opinions, but one occasionally yearns to raise a hand and ask the teacher for a more balanced discussion. Hand as a constitutional scholar had the defects of his virtues, after all. His pragmatism and his tolerance left him without a hard core of moral principle, other than the principle of tolerance itself. Like Holmes, but for different reasons, he saw no limits on what the legislature might do, so long as it acted in proper form. This view of the Constitution would have left us with segregated schools, and with women criminally prosecuted for choosing abortions, points that Gunther omits to make. I don’t think it does Hand a service to make these views, perhaps in some degree the fruit of disappointment, the theme of his life. They are his response to a specific historical setting (as perhaps Justice Scalia’s are), and fall on the bank outside the broad current of constitutional law, as we find it in the decisions of the Supreme Court.

For all its fascination, I must admit that the first 400 pages or so of this book are difficult going. Gunther is unwilling to let any detail go by without rendering a judgment upon it. The second half of the book, which deals with people and events that Gunther knew firsthand, is far better, and the cumulative effect of the last chapters is very powerful, although even here, Gunther rides his hobbies too hard.

But these are understandable defects in a vast and passionate work, written by someone uniquely qualified for it. It is certain to be the definitive biography of Learned Hand, and when Gunther manages to forget the King Charles’ Head he has made of the Masses case, and forgets for a moment to compare Hand with Holmes, he can write simply well, without excessive authorial intrusions. It would be unfair in any case to judge this biography by ordinary standards for books. It is a historical phenomenon in its own right, and the reader’s patience, although often called upon, is richly rewarded.


STATE of Missouri, Respondent, v. Ronald DENNIS, Appellant.

No. WD 55041.

Decided: February 23, 1999

Ronald Dennis appeals the circuit court's judgment convicting him as a prior drug offender of possessing methamphetamine with the intent of delivering it. Dennis contends that the circuit court erred in accepting certain evidence, including a beaker, marijuana and pills, photographs, a jewelry store receipt, and evidence of statements by a confidential informant who did not testify at trial. We affirm the circuit court's judgment.

On January 15, 1997, officers of the Buchanan County Drug Strike Force served a search warrant at a house in Wallace. They obtained the search warrant after a confidential informant bought methamphetamine at the house on January 7, 10, and 15. When officers served the warrant, Dennis was in the house, and they arrested him. During their search of him pursuant to arrest, officers found a plastic bag containing two types of controlled drugs in one of his pants' pockets. Dennis had $2975 in cash in his wallet, including four $20 bills which officers had given to the informant to purchase drugs earlier that day.

In their search of the house, officers found two triple-beam scales, a 2000 milliliter glass beaker, a plastic bag with methamphetamine residue in it, another plastic bag containing 1.3 grams of methamphetamine, several guns, and a jewelry store receipt which listed Dennis' name and the house's address.

A jury convicted Dennis of the state's charge. The circuit court sentenced him to 14 years in prison as a prior and persistent offender.

First, Dennis contends that the circuit court erred in permitting evidence that officers found a glass beaker in the house because it wrongfully suggested to the jury that he had been manufacturing methamphetamine. This, he contends, was evidence of a crime with which he was not charged. Similarly, he contends that the circuit court erred in permitting evidence of pills which officers found in his pocket and marijuana which was purchased along with the methamphetamine on the day the search warrant was served. This, he argues, was also evidence of uncharged crimes which prejudiced the jury and denied him the right to a fair trial.

The circuit court's discretion in deciding whether to admit or exclude evidence is broad. State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc), cert. denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997). We should reverse on that ground only when the circuit court's decision was “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration[.]” State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997).

Concerning the beaker, an officer testified that officers seized it because it was something that “could be used in the construction or the operation of the manufacturing of methamphetamine.” The circuit court did not permit any further evidence concerning the beaker, including the state's offer of the beaker itself.

We need not decide whether the circuit court erred in allowing this minor reference to manufacture of methamphetamine because we do not discern sufficient prejudice to Dennis to render the matter reversible error, assuming it was error. Not all error is reversible error. Only prejudicial error is. State v. Clemons, 946 S.W.2d 206, 227 (Mo. banc), cert. denied, 522 U.S. 968, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997). The evidence against Dennis was overwhelming. The officers' comment was the only evidence concerning manufacture of methamphetamine. The beaker was not admitted into evidence. The state made no reference to it in closing statement until after Dennis mentioned it in closing argument. 1 We discern no prejudice to Dennis and reject his contention that evidence of the beaker constituted reversible error.

The circuit court properly allowed evidence of the pills and marijuana found in Dennis' possession because it was probative of the element of intent, an essential element which the state was obligated to prove. See § 195.211, RSMo 1994. Evidence which would otherwise be inadmissible because its purpose is to establish misconduct that is separate and distinct from the crime for which the accused is being tried, can be allowed if it “is logically relevant [to the crime at issue], in that it has some legitimate tendency to establish directly the accused's guilt of the charges for which he is on trial ․ and if the evidence is legally relevant, in that its probative value outweighs its prejudicial effect.” State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). Evidence of uncharged misconduct is generally admissible as having a legitimate tendency to prove the charged crime when it tends to establish motive, intent, absence of mistake, common scheme or plan, or identity of the person charged with the crime. Id. Such evidence also “may be admitted to demonstrate [a] defendant's knowledge of particular facts, giving inference of defendant's awareness of his or her commission of the crime charged.” State v. Clover, 924 S.W.2d 853, 855 (Mo. banc 1996).

In Dennis' case, evidence of the marijuana and the pills was probative of Dennis' intent to possess methamphetamine. It gave rise to an inference that Dennis was involved or connected with other illegal drugs when he possessed methamphetamine, and it was admissible to show his intent and knowledge of the illegal nature and presence of that methamphetamine. State v. Dudley, 912 S.W.2d 525, 527 (Mo.App.1995) State v. Steward, 844 S.W.2d 31, 34-35 (Mo.App.1992). Balancing of the probative value of evidence against the prejudicial effect of the evidence lies within the sound discretion of the circuit court. Bernard, 849 S.W.2d at 13. We do not perceive an abuse of discretion.

Dennis next contends that the circuit court erred in denying his motion for a mistrial after the prosecutor violated pretrial discovery rules by offering photographs without giving him copies before trial. He argues that the state's offer of the photographs surprised him and changed his entire defense theory. Because Dennis did not preserve this claim in his motion for a new trial, he asks us to review for plain error. We decline.

Unless a claim of plain error “facially establishes substantial grounds for believing that ‘manifest injustice or miscarriage of justice has resulted,’ ” we should decline a request that we exercise our discretion to review the claim for plain error. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995). Dennis does not present such a claim.

The issue arose during Dennis' cross-examination of an officer as to whether a piece of furniture was a “hutch.” The officer replied he would have to see photographs which officers took during their search before he could positively identify the piece of furniture. Dennis immediately requested a mistrial, stating that he had never received copies of the photographs and that the prosecutor had violated discovery rules.

The prosecutor responded that Dennis should have known of the film because police evidence reports listed two rolls of film. She said that she had not asked that the film be developed until she had received on the day before trial copies of photographs of the house taken by Dennis. She said that, during trial, she had asked that the film be developed by a firm which developed it within an hour and that the developed photographs had not returned from the firm until after Dennis entered his objection.

The circuit court granted Dennis' request for a recess to review the photographs. The circuit court admonished the prosecutor that her disclosing the photographs earlier would have been a better practice. It asked Dennis to outline how he was prejudiced by the late disclosure. Dennis argued that the photographs were clearly staged. The circuit court responded that Dennis could cross-examine on that issue. Dennis then argued that the prosecutor's withholding the photographs was prejudicial in and of itself and again requested a mistrial. The circuit court denied his request. Dennis requested no further relief and did not preserve this issue in his motion for a new trial.

The remedy for a discovery violation is within the circuit court's discretion. State v. Kilgore, 771 S.W.2d 57, 66 (Mo. banc), cert. denied, 493 U.S. 874, 110 S.Ct. 211, 107 L.Ed.2d 164 (1989). Declaration of a mistrial is a drastic remedy which the circuit court should reserve for times when all other remedies are inadequate. State v. Smothers, 605 S.W.2d 128, 132 (Mo. banc 1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1708, 68 L.Ed.2d 203 (1981). Nothing in our facial examination of this record gives us a basis for having a substantial ground for believing that injustice or a miscarriage of justice has occurred in this case. We decline plain error review.

Dennis next contends that the circuit court erred in allowing evidence of a jewelry store invoice addressed to Dennis at 17445 S.E. 11 th Road in Dearborn. Officers found the invoice during their search of the house. Dennis argues that, because the bill listed the address as Dearborn but the search warrant listed the house's location as Wallace, the circuit court impermissibly allowed the prosecutor to stack inferences that the house where officers served the search warrant was Dennis' residence. Dennis did not object to the evidence when it was introduced at trial and did not raise the issue in his motion for a new trial. He acknowledges that he did not preserve the issue for our review, but he asks us to review it as plain error pursuant to Rule 30.20.

Again, we decline to review the issue as plain error. The record established that the officers served their warrant at 17445 S.E. 11 th Road in Wallace, and they found Dennis in the house at that address. The store bill listed Dennis' address as 17445 S.E. 11 th Road in Dearborn. Nothing facially causes us to believe that the addresses are not one in the same, especially given the uncontroverted testimony that the Wallace house was probably served by a Dearborn mail route.

Dennis finally contends that the circuit court erred in denying his motion in limine and in overruling objections to exclude officers' testimony relating to the confidential informant's role in buying drugs from Dennis. Dennis' point preserves nothing for us to review. A circuit court's denial of a motion in limine is interlocutory and is subject to change during a trial. State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). Dennis was obligated to object again at trial to the evidence. He did not. Dennis did object to the officer's testimony, but not on the ground asserted in his point relied on. He never objected on the ground of hearsay that the prosecutor had not disclosed the informant's identity. We reject his point as not raising a cognizable issue on appeal.

The judgment of the circuit court is affirmed.

1. Dennis referred to the beaker in his closing argument when he argued that officers had staged the pictures they took during their search. The prosecutor responded in rebuttal by countering Dennis' argument about the photographs, but she did not argue that the beaker was evidence of Dennis' guilt.

HAROLD L. LOWENSTEIN, Presiding Judge, and PATRICIA BRECKENRIDGE, Chief Judge, concur.

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments?

Earl Warren:

Number 492, Clarence Brandenburg, appellate versus Ohio.

Allen Brown:

Mr. Chief Justice, members of the Court.

We have before us case arising in the State of Ohio under a conviction under Ohio’s Criminal Syndicalism Act.

We have indeed before us something of rarity.

It is as far as I know a third case ever tried under Ohio’s Criminal Syndicalism Act and the first to ever reach the appellate level.

I — there was earlier in Ohio when their peculiar proceedings in which a prosecutor could bring a proceeding before the Supreme Court on appeal for a question of law only.

A proceeding in which — a motion was made in the lower court in Ohio, attacking the constitutionality of Ohio’s Criminal Syndicalism Law.

The lower court in Ohio held the law to be unconstitutional.

It was appealed to the Supreme Court in State versus Kassay and in what is basically in advisory opinion.

The Court stated that it was constitutional.

If the Court also stated several engaging other things.

It stated that the First Amendment did not apply to the states of the union.

It also stated that the measure of its application was an issue in its constitutionality and it would attend the first trial of a case to see what is the proper measure of its application.

The Court waited patiently for the first application to a case that arose some 40 years later in this case and surprisingly despite the invitation here sent out in Kassay, the Court declined to even hear his constitutional question on the application in this case.

It in fact defaulted to this Court, Ohio’s privilege are setting forth the limitations of the application of its statute.

Ohio’s privileges are setting forth potentiality of clarification and delineation of a statute which obviously on its face rushes head long into the First Amendment.

These are the facts in this case.

A television reporter receives a telephone call indicating that if he wanted to he could come and take movies of a Ku Klux Klan meeting.

He met some hooded figures and arrangements were made for the taking of a movie.

A movie was taken in which a cross was burned, some figures milled about, and yelled some stupid and rather, a senseless slogans and then a single figure was panned on, and he made a speech, a speech full of conditions, precedents, and reservations, hyperbola self-evidently stupid and silly.

The –he asserted that the clan was the largest organization in the State of Ohio.

He then went on in a — with a condition precedent that if the various branch is the Government including this Court, do not mend their ways that revengeance, a word of his own coining I assume would be taken.

He did not specify the revengeance and we do not know what particular aspect of the democratic process he was going to involve himself in revengeance.

He then spoke of a March not in identifying it as an armed march or any sort of march of any force or violence into Washington and then into two southern states, incidentally, raising federal questions perhaps rather than internal state questions.

Another film taken is inside the house —

Potter Stewart:

There were guns in this first —

Allen Brown:

There were guns in both films.

Potter Stewart:

Allen Brown:

It is also to be noted that the film was taken on a remote, private farm in which apparently there is no evidence whatsoever that these people were not invitees present on that farm by authority of the ownership of the farm.

There was nothing, nothing adduce an indictment was returned, I have to some preliminary move, maneuvering including a frontal attack on the constitutionality of a statute.

The case came on to trial.

The state produced nothing but the film in question.

The only other evidence that the state produced was basically geared to identifying the personnel involved in the film.

In other words, showing that the man Brandenburg had a gun similar to the guns in the film and that he had markings on his person similar to the markings and that his voice was similar.

Other than this, the state offered nothing.

It is critical that the state offered nothing on the nature and history of the Klan.

It offered nothing showing that the course of the Klan’s history any continuing historical or expert opinions concerning any possible commitment to violence.

It offered nothing on the continuing organization of the Klan, nothing whatsoever.

It offered nothing other than the film itself and the words intrinsic in the film itself.

The state then rests the defense in which I was not involved.

I’m appoint of counsel — appointed for purposes of appeal.

Made a motion for dismissal at that time, I will frankly admit that the motion for dismissal which was made by then counsel was simply our weight of evidence motion and he did not specifically denote the constitutional question that had arisen at that point in the presentation of the state’s case.

I suggest that it is completely immaterial but he did not.

The defense then preceded forward and offered basically a defense of the positive testimony in which various members — officers of the Klan testified as to their ostensible peaceful purposes and things of this sort and the historical evaluations of the presence of weapons and the burning of a cross.

The Court then charged the jury.

The Court’s charged the jury and I specifically asked this Court to consider it carefully.

Begins in the appendix at page 72 and met with the statute that thrust itself clearly within the First Amendment makes on its face no attempt to give us a life indication of a line demarcation between the mere abstract teaching in advocacy or even advocacy in relation to a clear and present danger as to advocacy in a hypothetical sense.

That in no way on its face does this.

The Court perpetuated the evil of the statute by making the charge even more general, in which he indeed define the term advocacy as involving intrinsic in it in his own charge.

Teaching, so that we have at this point a man who had been tried with none of the safeguards of the First Amendment applied to the trial of his cause to the measure of his evidence or to the instructions to those who worked to be the triers of the fact which would demarcate the point at which the First Amendment would be operative in relation to what happen on that isolated farm on that isolated day.

How large was this meeting?

Allen Brown:

The pictures, the testimony and the pictures indicate that perhaps 20 persons were involved.

Allen Brown:

All were participants in the meeting.

Allen Brown:

There is some indication of the record that there were no woman folk in the picture or in the meeting.

There are some testimonies in the record that one of the TV reporters said he heard, women’s voices in another room.

I know nothing else about the woman folk in that occasion.

Allen Brown:

Allen Brown:

Allen Brown:

I have so ordered it and at my last words from the clerk was that they were having trouble finding it but they would find it and send it on up here.

I devoutly pray because we do have in this case some issues as to what is shown in the film and since —

Hugo L. Black:

Is there — is there a dispute between the parties here as to whether there was or was not a call to engage in by all means?

Allen Brown:

Hugo L. Black:

Allen Brown:

There is a distinct dispute.

It is our contention that there was nothing in the speech which is part of the record and it is shown in the film and since the state limited itself to this.

There is nothing in it that is a called twice —

Hugo L. Black:

And — and your adversary disputes that?

Allen Brown:

I assume my adversary disputes that.

Potter Stewart:

The State’s whole case was the film plus the identification of the defendant as the person shown —

Allen Brown:

Potter Stewart:

— in the film, is that right?

Allen Brown:

And the language of the film is actually in both parties’ briefs.

The difference between us is that they tend to ascribe certain slogans by the person’s billing about to the given defendant.

We contend that the only words that the given defendant are ordered with the formal set of speeches.

Potter Stewart:

This film was shown over a local television station and in a network, wouldn’t it?

Court Dismisses Family COVID Suit

Ok, dear readers, you still with me? It’s Friday after all!

Remember that Kuciemba case your humble blogger reported on a bit previously? Well, it didn’t work out so well for the plaintiffs.

Mr. and Mrs. Kuciemba both sued Mr. Kuciemba’s private employer on a theory that Mr. Kuciemba was exposed to COVID19 in the course of his employment duties and then brought it home to his wife. Both were hospitalized after testing positive for COVID19.

Previously, the trial judge in the Kuciemba matter dismissed the claim with leave to amend, reasoning that it should be confined to the worker’s compensation system as to Mr. Kuciemba’s claims, declining to apply the reasoning used for asbestos litigation to COVID19.

Well, even after amending the claim, the trial judge found insufficient basis to proceed and dismissed the claim. So, at least for now, employers can breathe a bit easier about the fallout of COVID19 exposure to their employees, to wit, employees’ family members claiming downstream exposure and suing for negligence.

That being said, it was the California Supreme Court that opened up asbestos litigation for family members of employees. We should all agree to keep watch over this for developments up the chain of appeals.

Have a good weekend, dear readers!

Three Murders in Philadelphia

Photo illustration by Lisa Larson-Walker. Photo by Thinkstock.

It may have appeared coincidental when, on Aug. 23, two startling events transpired in separate high-profile Philadelphia murder cases. Anthony Wright, facing a jury for the second time after DNA revealed the probability of another perpetrator, was acquitted of the rape and murder of a 77-year-old woman after a short deliberation. And James Dennis, on death row for the robbery and murder of a young woman, was granted a new trial by the 3 rd U.S. Circuit Court of Appeals based on evidence hidden by the commonwealth of Pennsylvania at the time of his arrest. Both murders had occurred within a four-day period in October 1991 both investigations had involved the same two homicide detectives.

Was it really a coincidence? Vladimir Nabokov, one of the 20 th century’s greatest writers, spent much of his literary career navigating the rough waters among crime, detection, and punishment. He once wrote: “A certain man once lost a diamond cufflink in the wide blue sea, and twenty years later, on the exact day, a Friday apparently, he was eating a large fish—but there was no diamond inside. That’s what I like about coincidence.”

Cuff links remain lost in real life, too. There are no coincidences in criminal justice stories, only explanations waiting to be discovered.

The Philadelphia District Attorney’s Office was not interested in explanations, however. Reiterating its belief that Wright and Dennis were guilty, the office rebuffed allegations of wrongdoing. “If Mr. Wright’s legal team, or anyone else, has evidence of specific misconduct by any Philadelphia police officer, they should report it to us. As in the past, we will review it and proceed accordingly,” a spokesman announced.

He did not mention that the commonwealth was already in possession of such evidence, and had been since 1994.

During the afternoon hours of Oct. 19, 1991, Louise Talley was found nude and on the floor, stabbed to death in her North Philadelphia home. After a flurry of interviews with police and local residents, law enforcement’s attention quickly focused on Anthony Wright, a 20-year-old who lived nearby. Less than 24 hours after the victim had been discovered, Wright was sitting in Room 104 of the Police Administration Building by the time he left the room a few hours later, he had signed a statement that would put him in prison for the next 25 years. One of the men who questioned him was Manuel Santiago, a detective in his seventh year in homicide.

The statement, neither audio-recorded nor videotaped and in the handwriting of one of the detectives, was quite damning:

While the confession itself was probably enough to convict Wright, there was more. When asked what he was wearing when he killed the victim, he said he’d had on a Chicago Bulls sweatshirt, a pair of blue jeans with suede on them, and Fila sneakers. The following night, a homicide detective named Frank Jastrzembski and other police officers recovered those exact clothes under the mattress in Wright’s bedroom, acting on a search warrant obtained by Jastrzembski the sweatshirt and jeans were splattered with the victim’s blood. Other witnesses identified Wright as having been at or near the scene of the crime, and connected him to some televisions stolen from the house. The case was closed in a single day.

Two days after Wright was arrested for the murder of Louise Talley, Detectives Santiago and Jastrzembski were busy on another murder investigation less than three miles away. A high school student named Chedell Williams had been shot and killed after two men had approached her and a friend and demanded that they “give me your fucking earrings.” Acting on a rumor that “Jimmy” Dennis—a young man from a housing project a few miles away—had committed the crime, the police, led by Jastrzembski, ultimately found three eyewitnesses who identified him in a photo display, an in-person lineup, and a preliminary hearing. There was no physical evidence and no confession, but three eyewitnesses made for a strong case. Dennis, too, was arrested.

The Wright and Dennis cases followed the usual path of notorious Philadelphia murders. The DA’s office sought the death penalty in each. One year later, Dennis was convicted of first degree murder and sent to Pennsylvania’s death row. Eight months after that, Wright was also convicted, but when the jury could not decide between life and death, he was sentenced to life without the possibility of parole. Appeals would follow for both, years of them, and Detectives Santiago and Jastrzembski moved on to new homicide investigations.

In May 1993, less than a month before Anthony Wright was sentenced to spend the rest of his life in prison, Santiago became the assigned detective in the killing of Japelle McCray, which occurred during a street craps game in North Philadelphia. The police soon found a witness, a young man who identified himself as David Glenn. He gave a statement that “Percy” had shot the victim, but he did not know Percy’s last name. Further investigation suggested that “Percy” might be Percy St. George. The police, having only a single witness, went looking for this David Glenn to confirm they were on the right track.

Perhaps the McCray case wasn’t a priority, or the homicide division was busier than usual that summer. For whatever reason, it was several months before Detective Santiago brought Glenn into the police station there, the witness acknowledged that he had previously told the police about “Percy.” When the detective showed him a photo array, Glenn signed a photograph identifying Percy St. George as the man he had seen kill Japelle McCray. There was no physical evidence and no confession, and only one eyewitness this time—in short, the case was not nearly as strong as the Wright or Dennis cases. Nevertheless, the police arrested Percy St. George, relying on the veracity and accuracy of David Glenn. The Defender Association of Philadelphia was appointed to represent St. George. I was one of his lawyers.

Glenn proved to be a reluctant witness at the preliminary hearing. This is not unusual in homicide cases witnesses rarely come forward enthusiastically. But Glenn was more averse than the typically disinclined witness—not only did he claim he had seen nothing, he insisted that he had not even made the initial statement about “Percy.” When asked why he had identified Percy St. George as the killer when he hadn’t even seen the crime, he sounded like the 16-year-old he was: “[Santiago] told me that I could get locked up, so I was scared, because I had never been locked up before.”

Such recantations are commonplace in criminal courtrooms, and detectives are adept at overcoming them. Santiago testified under oath that it was Glenn who’d admitted to making the initial statement saying “Percy” did it and Glenn who’d picked out the Percy St. George photo “almost immediately.” That was enough—St. George would stand trial for murder. Jastrzembski also took a statement from the victim’s twin sister, who identified Glenn as the eyewitness she had talked to immediately after her brother’s shooting. Single (and reluctant) witness or not, the Philadelphia district attorney decided to seek the death penalty.

There were some good reasons to believe Glenn rather than Santiago. The two statements—one he denied making at all, the other that he said had been coerced—showed different dates of birth and different home addresses. There was also a little quirk in the signature on the first statement: the i in David had a circle instead of a point. If Glenn had not given the first statement, who had? He swore under oath that it was his friend, another 16-year-old named Inmon Goggans.

A short investigation followed. Short, because when asked separately by the defense and the prosecution whether he had given the first statement to the police and used the name David Glenn, Goggans immediately admitted that he had. Why? He was worried about being arrested on some bench warrants, so he used his friend’s name to avoid detection. Goggans said he had not actually seen the killing at all when the police rounded him up as a witness, he wanted to get out of there as quickly as possible, so he told them what they’d wanted to hear.

A year after St. George’s arrest, one thing was clear beyond question: 16-year-old David Glenn, who had entered police headquarters having seen and done nothing, left admitting to a statement he hadn’t given and identifying the perpetrator of a crime he hadn’t witnessed. Someone was going to have to explain how this could have happened. Had Detective Santiago coerced a teenager to wrongly identify someone in a capital murder investigation? Had Detective Jastrzembski encouraged the victim’s sister to misidentify the tall and gawky David Glenn for the short and squat Inmon Goggans?

On Oct. 7, 1994, exactly one year after Percy St. George’s preliminary hearing, another hearing was scheduled, this one at the request of the defense to “bar prosecution based on due process violations.” Santiago was subpoenaed to testify, but his attorney responded instead. Calling the allegations against his client “bold, unsupported, and scurrilous,” the lawyer nonetheless pointed out that the detective would be “compelled to assert his Fifth Amendment privilege.” Two other detectives involved in the investigation also took the Fifth, leaving the commonwealth without evidence or witnesses. The capital murder charge against St. George was dismissed, and the hearing was canceled. None of the three detectives were charged with a crime, and all remained on the police force after the case was closed. No explanation has ever been offered for why three Philadelphia detectives, two of whom were assigned to the homicide unit, would assert their Fifth Amendment rights in a case where they were the investigators rather than the investigated.

Photo illustration by Lisa Larson-Walker. Photo by Thinkstock.

Serious criminal appeals are the exact opposite of trials. They occur not as singular events but usually span decades and jurisdictions. The vast majority disappear with yesterday’s newspaper, never to be read again. If some new truth does emerge during the appellate process, it often arrives buried in procedural minutiae. Thus it was with the Wright and Dennis cases.

After more than a decade in prison, Wright began petitioning the court to analyze the DNA of the bodily fluids recovered from the victim. Although such testing had occurred in criminal cases as early as the late 1980s, it was still relatively rare at the time of Wright’s trial. Even when testing became common, the prosecution routinely fought it in older cases, and courts often refused to order it. The logic was Heller-ian. In order to get post-conviction testing, the applicant had to show that the results, if exculpatory, would prove him innocent. This was the conundrum facing Anthony Wright: His alleged confession to Detective Santiago could not be disproven by DNA.

After a judge in Philadelphia rejected his request, he looked to the Pennsylvania Superior Court, which turned him down as well. Another three years passed until the state Supreme Court—citing a number of wrongful convictions that involved confessions—reversed the Superior Court, and it took another several years after that until the testing was complete. By then it was 2014, and Wright was entering his third decade of incarceration.

The DNA results proved to be a bombshell. Not only was there no physical evidence placing Anthony Wright at the scene of the crime, but the sperm found in the victim’s vagina and rectum turned out to be that of a small-time criminal and crack addict named Ronnie Byrd, who had subsequently died in a South Carolina prison. Remarkably, the name “Ronnie Byrd” did not appear in the 1991 police reports. And there was more—the bloody clothes Jastrzembski claimed to have seized from Wright’s bedroom did not have Wright’s DNA on them but the victim’s the locations of the trace evidence made it clear that she had been wearing the clothes. The case seemed to have collapsed under the weight of incontrovertible evidence. But the Philadelphia District Attorney’s Office had a different perspective. Noting that there was “utterly overwhelming evidence of [Wright’s] guilt,” the prosecution claimed the DNA simply raised the “possibility of a second perpetrator.” This was news to anyone who watched the first trial—there had been no mention of a second perpetrator then. Even the alleged confession hadn’t referenced another person. But the commonwealth was undaunted. The DA’s office would not oppose a new trial for Anthony Wright. But prosecutors still professed that he was guilty, and they still intended to prove it.

Prosecutors and defense attorneys alike have noted that jurors expect to see DNA evidence in every murder case, a perception court-watchers dub the “CSI Effect.” In reality, a 2010 study showed that DNA evidence exists in less than 5 percent of homicide investigations. Wrongful convictions that are overturned based on DNA evidence represent only a sliver of people who are unjustly imprisoned in the United States. The Innocence Project reports that 71 percent of DNA exonerations have also involved witness identifications that later proved to be incorrect, but prosecutors and judges are far less likely to acknowledge the possible injustice of a misidentification when there’s no DNA to confirm it. Those fighting to prove their innocence without the benefit of DNA evidence are leaning into a very stiff wind.

James Dennis had no genetic testing available to exonerate him after his conviction. What he did have was a receipt for a welfare check, one that belonged to a woman who’d been on the same bus as Dennis, four miles from where the crime had occurred. When he was arrested, he told the police he had seen this woman at the time of the murder, but she testified against him at trial: She said she had seen Dennis on the bus two hours after the crime, negating his alibi. The woman based her testimony on the recollection that she had noticed him about an hour after cashing her welfare check. Detectives prompted her memory with a receipt stamped 13:03, which she mistakenly understood to be 3:03 p.m. The prosecution did not correct her, nor did they provide the receipt to the defense. In the eyes of the jury, Dennis had lied about his whereabouts at the time of the murder.

The Pennsylvania Supreme Court denied his appeal, finding the receipt irrelevant and noting “the overwhelming evidence” of Dennis’ guilt. He returned to that same court three more times over the next 13 years, in each instance heading back to death row with more evidence of innocence and commonwealth misconduct, and less hope for a new trial. In his last state appeal, Dennis established that the main eyewitness had told the victim’s aunt and uncle she recognized the perpetrator from her high school, a school Dennis had not attended. That statement had been kept from Dennis’ lawyer at trial. The court was not impressed, however there were two other eyewitnesses who had positively identified him.

It was the beginning of 2011. Within a month the Pennsylvania Supreme Court had cleared the way for DNA testing in the Wright case but had rebuffed Dennis’ claim that he had been wrongly identified. While Wright began to prepare for a new trial, Dennis looked to the federal courts for relief. As would soon be revealed, the case against him was far weaker than the previous appeals had indicated.

Any lawyer in the criminal justice system is familiar with the case of Brady v. Maryland. Indeed, the opinion is so ingrained in the day-to-day functioning of the law that attorneys on both sides of the aisle simply refer to “Brady evidence”—material in the possession of the state that must be provided to the defense because it is “favorable to an accused.” On its face, it is a clear-cut rule, but criminal lawyers know better. As the late Supreme Court Justice John Marshall Harlan said in a very different context, “one man’s vulgarity is another’s lyric.” In other words, favorable is subject to interpretation.

There is an additional irony to the Brady rule: The decision about what is “favorable” is not made by a neutral party but by the prosecution. There is thus a “fox guarding the henhouse” quality to the process, and many legal commentators have questioned the efficacy of placing this obligation on the prosecution. James Dennis certainly had reason to believe the Philadelphia District Attorney’s Office was taking a very narrow view of its responsibility.

The welfare receipt and the statement that the perpetrator had attended the victim’s high school were important—any defense attorney would have wanted such information. But there was more that hadn’t been turned over. Ten days after the murder, an inmate in a local county jail named William Frazier informed the police that a friend had told him that he and two other men had committed the murder in question. Although inmates often try to negotiate their way out of prison by bartering less than dependable material, this statement offered what the law likes to call “indicia of reliability.” It included specific details that comported with the evidence the police had already gathered about the murder it identified a triggerman who fit eyewitnesses’ physical description of the perpetrator more closely than James Dennis did and the confession itself had been overheard by Frazier’s aunt, a wholly disinterested witness.

In all, the prosecution withheld six documents relating to Frazier’s statement from the defense. The police had taken Frazier seriously—they’d escorted him from the jail on a ride-along, where he pointed out the homes of the people he’d named. He also told them that one of the men “likes to wear sweat suits,” a fact that fit the description provided by eyewitnesses. Nevertheless, the commonwealth claimed the Frazier lead was a dead end and thus immaterial. The federal district court made short work of that argument, pointing out that the statement was credible and could not be “passed off as merely a ‘fruitless lead’ that the prosecution was entitled to keep to itself.” The federal court, 22 years after the crime, granted Dennis a new trial.

Philadelphia District Attorney Seth Williams was not shamed by the revelation that his office had hidden important evidence. Rather, he was emboldened, condemning the district court’s “acceptance of slanted factual allegations.” Now it was the DA’s turn to take the next step up the appeals ladder. By the time the 3 rd Circuit Court of Appeals re-examined the Dennis prosecution three years later, some old facts were brought into a new light.

It turned out that Detectives Santiago and Jastrzembski were more deeply involved in the investigation than the previous appeals indicated. They had followed up on Frazier’s tip by speaking to one of the three men he’d implicated in the murder. That man—like the main eyewitness—had admitted to knowing the victim from high school, and to hanging out on the exact same corner where another eyewitness said he’d seen one of the alleged perpetrators. Yet the detectives hadn’t shown a photo of the man to any of the witnesses nor had they revealed the information to the defense.

Santiago had also conducted all of the photo displays, just as he would a few years later with David Glenn in the Percy St. George case. Jastrzembski, meanwhile, said he had seized clothes from Dennis’ house, just as he claimed to have done in the Wright case. Although he later testified that those items fit the description of the clothing worn by the perpetrator, the jury never saw the actual garments. According to the detective, the clothes had been thrown in the trash by cleaners.

Two months short of a quarter-century after the crime that sent Dennis to death row, the 3 rd Circuit, in a rare en banc decision, voted 9–4 to grant him a new trial. Once again, the Philadelphia District Attorney’s Office derided the court’s decision, stating that it would “determine whether to seek further review on the basis of the compelling dissent by four federal judges, who concluded that the evidence against Dennis remains ‘strong.’ ”

Photo illustration by Lisa Larson-Walker. Photo by Thinkstock.

While James Dennis was still fighting for his freedom, Anthony Wright had neared the end of his ordeal. His second trial, handled by the Innocence Project and a top Philadelphia law firm, was shaping up as a very different affair from the first. Not only had DNA evidence cast doubt on the provenance of the clothes allegedly recovered by Detective Jastrzembski, but an entirely new suspect had been introduced into the case. Only one thing remained unchanged—the unrecorded confession taken by Detective Santiago. This time around, the defense argued that the jury should learn about the detective’s methods in the Percy St. George case:

Nina Morrison of the Innocence Project emphasized that this was “not an everyday isolated accusation of misconduct. [Detective Santiago] was willing to let a capital murder case get dismissed with prejudice rather than take the stand and defend the simple taking of a witness statement.”

The prosecution’s position was simple, if ironic: Detective Santiago had never been convicted of any crime, and “unconvicted criminal accusations” were never permitted into evidence. Neither side pointed out that Santiago could not possibly have been convicted, since the same prosecutor’s office had not even sought to arrest him for his conduct. Nonetheless, the judge refused to allow inquiry into the St. George case.

In the end, though, it didn’t matter. “DNA has changed the playing field in criminal justice,” Peter Neufeld, the co-founder of the Innocence Project, told the jury. “Now you jurors will level that playing field.” In August 2016, after a nine-day trial, the jury deliberated over lunch and then acquitted Anthony Wright. While his lawyers worked to have the paperwork processed for his release, the Wright family shared emotional moments with the jurors, who had remained at the courthouse after their verdict.

“I’m angry,” the jury forewoman said. “The evidence was there that he did not commit this crime. The city should never have brought this case. I’m just happy that today’s verdict will let Tony move on with the rest of his life.” She labeled the statement that Santiago elicited from Wright a “supposed confession.”

The defense team called for an independent investigation of all convictions of young black men who were prosecuted using evidence developed by the detectives in Wright’s case. “After the DNA results were known, we have three and a half years where the District Attorney’s Office did nothing to reinvestigate this case or find out who Ronnie Byrd was,” Neufeld said. “It’s absolutely unconscionable and unacceptable.”

The Philadelphia prosecutors were not deterred by the quick acquittal. “We believe that the evidence was sufficient to prove Anthony Wright participated in the murder of Louise Talley,” the office spokesperson declared, adhering to its new theory that Wright had not acted alone. There was no need for an independent investigation of all convictions of young black men, the DA’s office added, as no evidence of “specific misconduct” had been produced. The facts that three Philadelphia detectives, including the detective who testified about the “supposed confession” by Wright, had taken the Fifth in a separate case and that the DA’s office had done nothing about it for more than two decades went unmentioned.

Four months after Anthony Wright went home, James Dennis left death row. Surrounded by a phalanx of lawyers, some of whom had been helping him for decades, he walked into Room 507 of Philadelphia’s Criminal Justice Center in a burgundy jumpsuit, short and squat and bald. While the prosecutor still believed him guilty, there was the matter of all those police reports that hadn’t been turned over, and the very real chance Dennis might be acquitted as Wright had been. Maybe neither side wanted to take a chance. In any case, Dennis pleaded no contest to the same charges that had put him in line to be executed, only this time the 25 years he had already served paid his bill to the commonwealth. When asked if he had anything to say, he told the judge he’d been in prison all those years for crimes he hadn’t committed. “I just want the nightmare to end,” he said. An old robbery charge from 1991 is still on his record, but the prosecution has agreed to recommend his parole. He’s hoping to be out of prison for good any day now.

Wright and Dennis spent the Clinton, Bush, and Obama years in prison. Dennis remains in prison as the Trump era unfolds. But the detectives accused of misconduct in those cases have emerged from the accusations unscathed. Both Santiago and Jastrzembski served as Philadelphia police officers for more than 25 years, each spending a decade or more in the homicide division. Santiago went on to be a special agent in the Pennsylvania Attorney General’s Office, where he was working at the time of his testimony in the second Wright trial. Jastrzembski spent another 17 years in private security after leaving the police force, finally retiring in 2015.

The last chapter of this saga has not yet been written. In September, the Innocence Project joined with a premier Philadelphia civil rights firm to file a wide-ranging lawsuit against the city and 11 police officers, including Santiago and Jastrzembski. Alleging a conspiracy to deprive Wright of his liberty through a malicious prosecution, the complaint lists a pervasive pattern and practice of unconstitutional transgressions in homicide investigations, including coerced confessions, fabricated false evidence, and withheld exculpatory evidence. Eight other cases involving misconduct are listed, among them the ones involving James Dennis and Percy St. George. One of the many claims alleged in the lawsuit, which is still in the discovery phase, is that Philadelphia and its police department have been “deliberately indifferent” to the need to discipline police officers.

Like all civil lawsuits, the damages sought are monetary. Clocks cannot be turned back youth cannot be restored. Near the end of his testimony in the Wright trial, Jastrzembski remarked, “It’s not TV. This is the real thing.”

He doesn’t need to tell Wright, and Dennis, and St. George. They already know.

July 5, 2011: Casey is found not guilty of murder

After almost six weeks of testimony and 400 pieces of evidence presented in court, the jury of seven women and five men takes less than 11 hours to reach a verdict of not guilty.

July 7, 2011: Casey is sentenced to time already served

Casey receives a four-year sentence and a $4,000 fine for the four counts of lying to police, but the prison time is canceled out by the near three years already spent behind bars and credit for good behavior.

July 17, 2011: Casey is released from jail

Casey exits the Orange County Jail shortly after midnight, passing the approximately 100 protesters who showed up to demand justice for Caylee. "It is my hope that Casey Anthony can receive the counseling and treatment she needs to move forward with the rest of her life," her lawyer says in a statement.

Suspected of murder, held for two years, man has charges dropped Read more at Suspected of murder, held for two years, man has charges dropped Read more at…

Cross-posted from the Inquirer A divided Pennsylvania Supreme Court has dismissed litigation to reform the way Philadelphia reimburses lawyers appointed to defend indigent clients facing the death penalty. The four-justice…

The Vault

The Vault is our new FOIA Library, containing 6,700 documents and other media that have been scanned from paper into digital copies so you can read them in the comfort of your home or office.

Included here are many new FBI files that have been released to the public but never added to this website dozens of records previously posted on our site but removed as requests diminished files from our previous FOIA Library, and new, previously unreleased files.

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